MORTGAGE
(FIXED)
PARTIES This mortgage is made between the Borrower named below
and BARCLAYS MERCANTILE BUSINESS FINANCE LIMITED ("the
Lender" which expression shall include the Lender's
successors and assigns and any company for which the
Lender may be acting as agent) of Xxxxxxxxx Xxxxx,
Xxxxxxxxx Xxx, Xxxxxxxxxxx, Xxxxxxxxx XX00 0XX.
DATE AND 1.1 The date of this mortgage is 23 November 2000
DEFINITIONS In this mortgage the following expressions have
the meanings respectively set out against them:-
"Borrower": VARI-LITE PRODUCTION SERVICES LIMITED
of 00-00 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxx XX0 0XX (registered England
No. 2876045);
"Goods": the goods, particulars of which are set
out in the Schedule to this mortgage
together with all component parts,
accessories, improvements and renewals
and all books, manuals, handbooks,
technical data, drawings, schedules
and other documentation and any
amendments to them belonging to the
Goods;
"Loan": L4,000,000 or the balance for the time
being outstanding;
"Offer Letter": Offer Letter means the letter dated
9th November 2000 from the Lender to
the Borrower offering a L4,000,000
Chattel Mortgage Facility;
"Instalment
Dates": the day of each month in each year in
which the Loan is outstanding the first
Instalment Date being 22 December 2000;
"Instalments": 48 monthly payments of L99,486.22
payable on the Instalment Dates;
"Base Rate": Finance House Base Rate as from time
to time published in the Financial
Times or
other newspaper or, in default of
such publication whilst any sum is
outstanding under this mortgage, such
alternative equivalent base rate as
shall be agreed between the parties or,
in default of agreement, settled by the
President for the time being of the
Institute of Chartered Accountants in
England and Wales or his nominee acting
as an expert;
"Termination the balance of unpaid Instalments
Sum": less a rebate of interest calculated
by the Lender for early repayment;
"Insurances": all policies and contracts of insurance
taken out or to be taken out in respect
of the Goods, including all claims and
benefits arising under them and returns
of premium;
"Security any mortgage, charge, pledge, Lien or
Interest": other encumbrance;
"Total Loss": total loss whether actual or
constructive or compromised or agreed
or arranged with the insurers of the
Goods;
"Default any of the events stated in clause 9
Events": below;
"Working Day": any day, except Saturdays, on which
the clearing banks in the City of
London are (or would be but for strike,
lockout or other stoppage, affecting
particular banks or banks generally)
open during banking hours.
INTERPRETATION 1.2 In this mortgage the masculine includes the
feminine and the neuter, and the singular includes the
plural. If the Borrower is two or more persons, that
expression includes all such persons (and each of
them) and their liability under this mortgage is joint
and several. The rights and obligations of the
Borrower hereunder are personal to the Borrower and
shall not be capable of being assigned or transferred
CONSTRUCTION 1.3 The marginal notes are for ease of reference
only and do not affect the construction of this
mortgage. Any reference in this deed to a statutory
provision shall be construed as a reference to that
provision as from time to time amended or re-enacted.
The benefit of this deed and the security created
hereby shall enure for the benefit of the Lender's
successors and assigns and any company for which the
Lender may be acting as agent.
OFFER LETTER 1.4 The terms of the Offer Letter shall apply to
this mortgage and shall be incorporated herein. In the
event of any conflict or inconsistency as between the
Offer Letter and this mortgage, the terms of the Offer
Letter shall prevail.
INSTALMENTS 2.1 The Borrower shall pay to the Lender on the
Instalment Dates the Instalments which comprise
repayments of principal and payments of interest.
INTEREST 2.2. If the Borrower does not make payment of
any Instalment on the relevant Instalment Date or any
other sum payable under this mortgage within 10 days
of the Lender's demand, the Borrower shall pay
interest to the Lender if demanded by the Lender at
the rate of Finance House Base Rate plus 5% per annum
calculated on a day to day basis from the due date to
the date of receipt by the Lender both before and
after judgement.
EARLY SETTLEMENT 2.3. As an alternative to payment of Instalments the
Lender will accept the Termination Sum in full settlement
of the Loan with interest.
NON-WORKING DAY 2.4 Any amount payable to the Lender on a day which is
not a Working Day will be payable on the preceding
Working Day.
SUMS SECURED 3. This mortgage secures to the Lender repayment of
the Loan, the payment of interest on the Loan and the
payment from time to time of all other sums due from
the Borrower to the Lender on any account whatsoever.
If a Default Event occurs all amounts secured by this
mortgage shall become immediately due and payable. The
Borrower covenants to pay all such monies to the
Lender.
COSTS 4. Any legal or other costs, charges or expenses
payable by the Borrower to the Lender under the
provisions of this mortgage are payable by the
Borrower to the Lender with value added tax thereon
(if any). Legal Costs are payable on a full indemnity
basis as between solicitor and own client.
WARRANTIES BY 5. The Borrower warrants to the Lender that the
BORROWER Borrower:-
(i) lawfully owns and is in possession of the Goods
and that it and the Insurances are free of any
Security Interest (other than any Security
Interest created or subsisting with the written
consent of the Lender);
(ii) is not subject to any prohibition or restriction
of its right or ability to enter into this
mortgage;
(iii) has power by its memorandum of association and
has taken all corporate action necessary to enter
into this
mortgage;
(iv) has not suffered or there have not occurred any
Default Events which are unremedied.
MORTGAGE 6. The Borrower hereby mortgages and charges with full
title guarantee to the Lender all its right, title and
interest in the Goods as security for all sums payable
by the Borrower to the Lender, as referred to in
clause 3 above.
UNDERTAKINGS BY 7. The Borrower:-
BORROWER
(i) shall at its own expense keep the Goods in
good working order and condition;
(ii) shall not use or permit the Goods to be used
in contravention of any statute or regulation
or for any purpose for which they are not
designed or reasonably suitable and shall take
all reasonable steps to ensure that the use
and operation of the Goods is by skilled
personnel and is without risks to health and
safety;
(iii) shall not (except with the consent of the
Lender) sell, transfer, demise, let on hire or
otherwise part with possession of the Goods or
create or allow to arise any Security Interest
in the Goods;
(iv) shall maintain all records, logs and other
records required by the manufacturers of the
the Goods;
(v) shall replace any component, part or item of the
Goods where necessary provided that such
replacement is of at least equivalent value
and condition when compared to the original;
(vi) shall cause any alterations to the Goods that
are from time to time required by law to be
made at the Borrower's expense, but shall not
otherwise alter the Goods otherwise than by
way of improvement;
(vii) shall notify the Lender within 24 hours
following:-
(a) demand of the whereabouts of the Goods;
(b) any occurrence as a result of which the
Goods are or are likely to become a Total
Loss;
(c) the occurrence of any of the Default
Events referred to in clause 9(ii) to
(viii) below inclusive;
(viii) shall permit any person authorised by the
Lender at all reasonable times upon at least
24 hours notice (unless a Default Event is
continuing unremedied or unwaived in which
case no notice will be required) to inspect
the Goods and permit or procure the granting
of permission for such person to enter any
land or premises where the Goods may be
situated;
(ix) shall pay on demand to the Lender with interest
all its costs and expenses incurred in:-
(a) the advance of the Loan and the acceptance
and registration of this mortgage;
(b) the preservation of the Lender's security
in the Goods;
(c) the exercise by the Lender of any of its
powers under this mortgage and in
ascertaining the whereabouts and/or
safekeeping of the Goods;
(d) any legal proceedings instituted by the
Lender under this mortgage.
INSURANCES 8.1 The Insurances shall be effected and maintained by
the Borrower at all times while any amount is secured
by this mortgage and shall be endorsed with a note of
the Lender's interest.
RISKS INSURED 8.2 The Insurances shall be all insurable risks cover
under policies, on terms, subject only to exclusions
and/or an excess approved by the Lender and with
insurers acceptable to the Lender.
SUM INSURED 8.3 The Goods shall be insured for their market
value as agreed by the parties or, failing agreement,
as determined, at the expense of the Borrower, by a
valuer acceptable to the parties.
PREMIUMS 8.4 The Borrower shall pay punctually all premiums
payable by the Borrower in respect of the Insurances
and, on request, produce receipts or other proof of
payment to the Lender.
APPLICATION OF 8.5 The Lender may elect to require the Borrower to
INSURANCE PROCEEDS apply any proceeds of the Insurances received by it in
making good the loss, repairing the damage, or
satisfying the liability in respect of which the claim
was made or in satisfaction of any amount secured by
this mortgage and pending such election such proceeds
shall be held in trust for the Lender.
INSURANCE 8.6 The Borrower shall not use and shall not allow the
WARRANTIES Goods to be used other than in conformity with the terms
of the Insurances, including any express or implied
warranties, without the prior written consent of the
insurers and without paying any extra premium required.
LENDER MAY INSURE 8.7 If the Borrower fails to effect or maintain the
Insurances, the Lender may effect such Insurances at
the Borrower's expense to be reimbursed to the Lender
on demand with interest.
DEFAULT EVENTS 9. The following are the Default Events:-
(i) the Borrower does not pay any sum of money
secured by this mortgage within 10 days of
the due date for payment (unless the Lender
elects in its absolute discretion to
accept late payment);
(ii) the Borrower enters into or attempts to
enter into a composition or arrangement
with its creditors or any of them;
(iii) a receiver or administrative receiver is
appointed of the Borrower's assets or any
of them or a meeting, whether formal or
informal, is called of the Borrower's
creditors or any of them;
(iv) the petition for the appointment to the
Borrower of an administrator is presented
or the Borrower goes into liquidation,
except for a voluntary liquidation for
the purpose of amalgamation or
reconstruction on terms previously approved
by the Lender in writing;
(v) the levy against the Goods of any distress
or execution which is not paid out within
10 Working Days of written request so
requiring from the Lender to the Borrower;
(vi) any of the warranties in clause 5 above
proves to be incorrect, inaccurate or
misleading in any material respect;
(vii) the Goods are a Total Loss;
(viii) the Borrower is unable to pay its debts
within the meaning of Section 123 of the
Insolvency Xxx 0000;
(ix) the Lender's Security is in the Lender's
reasonable opinion in jeopardy in any
material respect;
(x) any company in the Barclays PLC group
withdraws any facility or demands payment
as a result of a default by the Borrower;
(xi) the Borrower fails to comply with any of
its obligations, covenants or undertakings
contained in this deed (other than those
relating to the payment of money) and such
default (if in the opinion of the Lender it
is capable of remedy) is not remedied to
the Lender's satisfaction within 10 days
after the occurrence of such failure.
LENDER'S POWERS 10.1 On the occurrence of a Default Event the Lender
may, at any time on the date of the occurrence or any
subsequent date, without prejudice to any powers
available to a Mortgagee by law, do any of the
following by itself or by such agents as it thinks fit
and without prior notice to the Borrower:-
(i) take possession of the Goods severing them from
any land or other goods (but subject to the
rights of the hirer under any hire agreement),
if necessary, the Borrower reimbursing the
Lender any expense incurred or damage suffered
on demand with interest;
(ii) move the Goods to a safe place;
(iii) discharge, settle or take or defend any
proceedings in respect of any claims incurred
in connection with the Goods or the Insurances
and collect on the Insurances and give any good
receipts required;
(iv) pending sale, insure, maintain, repair, operate,
hire out or otherwise use the Goods (but subject
to the rights of the hirer under any hire
agreement);
(v) sell the Goods by public auction or private sale,
without advertisement and at such place, at such
time and on such terms as the Lender may
determine;
(vi) do all such other acts and things as may be
considered to be necessary for any of the matters
or powers aforesaid.
Section 103 of the Law of Property Act 1925 shall not
apply to this security or any sale made by virtue hereof.
LENDER NOT LIABLE 10.2 The Lender shall not be answerable for any loss
occasioned by sale by it of the Goods under this
mortgage or any postponement of sale.
LENDER'S RECEIPT 10.3 On any sale of the Goods the Lender's receipt
for the
purchase money shall effectively discharge the
purchaser. The purchaser shall not be bound to enquire
whether the Lender's power of sale has arisen or is
exercisable and shall not be concerned as to how the
proceeds of sale are applied.
APPLICATION 10.4 All monies received by the Lender in respect of:-
(i) sale of the Goods and/or
(ii) proceeds of the Insurances which the Lender, in
its sole discretion, elects not to release to the
Borrower for application by it in accordance with
clause 8.5 above;
shall be applied as follows:-
FIRST in payment or reimbursement to the Lender of
all costs and expenses incurred by it in
connection with this mortgage and the
exercise of its powers hereunder;
SECONDLY in payment of any accrued but unpaid interest
in connection with this mortgage;
THIRDLY in repayment or reduction of the Loan;
FOURTHLY in payment of any surplus to the Borrower.
ATTORNEY 11. The Borrower hereby irrevocably appoints the Lender
as its attorney with full power to substitute any
other person, for the Borrower and in the Borrower's
name to sign, seal, deliver and otherwise perfect any
deed, assurance or agreement and do anything which may
be required for any purpose under or in connection
with this mortgage.
WAIVER 12. The Lender's rights and powers under this mortgage
shall not be prejudiced or affected by delay or
omission on the Lender's part. If the Lender, on
occasion expressly or impliedly waives any of its
rights or powers, such waiver shall not prevent the
Lender from subsequently acting strictly in accordance
with such rights and powers.
FURTHER ASSURANCES 13. The Borrower shall at its own expense sign, seal,
deliver and otherwise perfect any deed, assurance or
agreement and do anything the Lender may require to
perfect or protect the security constituted by this
mortgage.
NOTICES 14. Any notice served under this mortgage shall be
sufficiently served if sent by pre-paid letter post to
the respective addresses above (or such changed
address as one party may notify to the other) and
proof of dispatch shall be
conclusive evidence of receipt by the addressee in due
course of transmission.
CONSOLIDATION 15. If the Lender has from the Borrower security over
any other property of the Borrower, the Borrower may
not redeem such security or the security constituted
by this mortgage alone without the prior written
consent of the Lender. Section 93 of the Law of
Property Xxx 0000 (which restricts the consolidation
of mortgages) shall not apply to the security
constituted by this mortgage.
LAW 16. This mortgage shall be governed by the laws of
England.
SEVERANCE 17. Each of the provisions of this deed is severable
and distinct from the others and if at any time one or
more of such provisions is or becomes invalid illegal
or unenforceable, the validity legality and
enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
IN WITNESS of which this deed was executed and is
delivered on and takes effect from the day and year
first before written.
SCHEDULE - THE GOODS
--------------------
THE COMMON SEAL of the Borrower
was affixed to this deed in the
presence of:-
or (where no company seal is affixed)
Executed as a deed by the Borrower
acting by:-
Director
Director/Secretary
